State Of Louisiana v. Brhian Thomas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0817

STATE OF LOUISIANA

VERSUS

BRHIAN THOMAS

Judgment Rendered: JAN 0 9 2020

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APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF LAFOURCHE
STATE OF LOUISIANA
DOCKET NUMBER 570380

HONORABLE F. HUGH LAROSE, JUDGE

Kristine M. Russell Attorneys for Appellee
District Attorney State of Louisiana
and

Shaun George

Assistant District Attorney
Thibodaux, Louisiana

Samuel H. Winston Attorneys for Defendant/ Appellant
Kara A. Larson Brhian Thomas
New Orleans, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

McDonald, J.

The defendant, Brhian Thomas, was charged by grand jury indictment with

second degree murder, a violation of La. R.S. 14: 30. 1. He pled not guilty and,

following a jury trial, was found guilty as charged. He filed a motion for

postverdict judgment of acquittal, which was denied. He was sentenced to life

imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence. The defendant filed a motion to reconsider sentence, which was denied.

The defendant now appeals, designating four assignments of error. We affirm the

conviction and sentence.

FACTS

Javonnie Raymond and Tarisha Thomas were in a relationship. They had a

three-year- old son together. Tarisha was also in a relationship with the defendant.

They had all known each other for years, and Javonnie and the defendant were

aware that Tarisha was in relationships with each of them. Tarisha was staying

with the defendant in his trailer at Solar Trailer Park in Thibodaux, Louisiana.

During this time, Javonnie had given Tarisha $ 2, 500 to purchase a trailer for

Javonnie and Tarisha to live in. Tarisha never bought the trailer. She gave

Javonnie some, but not all, of the money back that he had given her.

On September 4, 2017, a little after 1: 00 a.m., Javonnie and his brother,

Deeric, drove to the defendant' s trailer. Javonnie was going there to pick up his

son and to get the remaining money that Tarisha owed him. Deeric stayed in the

car. Javonnie knocked on the side of the trailer, the defendant answered, and

Javonnie told him why he was there. While Javonnie waited in the yard, the

defendant went back into the trailer to get Tarisha, who was sleeping and had

already been awakened by her son, who had told Tarisha that Javonnie was there.

Tarisha and the defendant then went outside, and Javonnie began talking to

Tarisha. Javonnie told Tarisha that he thought she was not with the defendant

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anymore. Tarisha replied that she was not with the defendant. Angered by this, the

defendant asked Tarisha what she meant by that comment. The defendant then

turned his attention to Javonnie and asked him if he wanted to fight. Javonnie

replied he did not want to fight. The defendant then struck Javonnie in the face

and wrestled him to the ground. The impact caused Javonnie' s shoulder to become

dislocated. The defendant kept striking Javonnie while he was on the ground.

Javonnie called out to his brother Deeric.

Deeric got out of the car and tackled the defendant off of Javonnie. The

defendant and Deeric then began wrestling on the ground. Moments later, Deeric

got off of the defendant and tried to get away. The defendant then tackled Deeric.

According to Javonnie, the defendant then told Tarisha to give him the gun. Deeric

and Javonnie ran away in different directions. Deeric slipped and fell. When he

got up and started to run again, the defendant shot him in the upper right back area.

Deeric was brought to the hospital, where he died. The doctor who

performed the autopsy on Deeric testified that the bullet entered his upper right

back and affected the organs of the abdomen, causing extensive injury. The bullet

traveled downward, forward, and to the left, and came to rest in the left pelvis.

When the police got to the scene, the defendant falsely informed them that

the shooter had fled on foot. The defendant also told deputies the " subject" had

left in a dark colored vehicle. After being questioned a few times at the scene,

Tarisha identified the defendant as the shooter and was taken in for more

questioning. At some point, as more people started to gather around, the defendant

left the scene. Javonnie went to the hospital that night for his dislocated shoulder

and told the police there what happened. The police could not find the defendant.

Two days later, on September 6, the defendant turned himself in.

Javonnie and Tarisha were the only eyewitnesses who testified at trial to the

defendant' s shooting of Deeric. The defendant did not testify.

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ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was

insufficient to support his conviction of second degree murder. The defendant does

not deny killing the victim, but argues that he was acting in self-defense.

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of

review for the sufficiency of the evidence to uphold a conviction is whether,

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L.Ed.2d 560 ( 1979). See La. Code Crim. P. art. 821( B); State v. Ordodi, 2006-

0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660. The Jackson standard of review,

incorporated in Article 821, is an objective standard for testing the overall

evidence, both direct and circumstantial, for reasonable doubt. When analyzing

circumstantial evidence, La. R.S. 15: 438 provides that the factfinder must be

satisfied the overall evidence excludes every reasonable hypothesis of innocence.

State v. Patorno, 2001- 2585 ( La. App. 1 st Cir. 6/ 21/ 02), 822 So. 2d 141, 144.

Second degree murder is the killing of a human being when the offender has

a specific intent to kill or to inflict great bodily harm. La. R.S. 14: 30. 1( A)( 1).

Specific criminal intent is " that state of mind which exists when the circumstances

indicate that the offender actively desired the prescribed criminal consequences to

follow his act or failure to act." La. R.S. 14: 10( 1). Specific intent may be formed

in an instant. State v. Mickelson, 2012- 2539 ( La. 9/ 3/ 14), 149 So. 3d 178, 183.

Because it is a state of mind, specific intent need not be proven as a fact, but may

be inferred from circumstances surrounding the offense and the defendant's

actions. Mickelson, 149 So. 3d at 182. It has long been recognized that specific

intent to kill may be inferred from a defendant' s act of pointing a gun and firing at

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a person. State v. Reed, 2014- 1980 ( La. 9/ 7/ 16), 200 So. 3d 291, 309, cert. denied,

U.S. _, 137 S. Ct. 787, 197 L.Ed.2d 258 ( 2017). See State v. Eby, 2017- 1456

La. App. 1st Cir. 4/ 6/ 16), 248 So. 3d 420, 424, writ denied, 2018- 0762 ( La.

2/ 11/ 19), 263 So. 3d 1153.

In his brief, the defendant does not deny that he shot and killed Deeric. The

defendant suggests, instead, that the State failed to prove he did not kill Deeric in

self-defense. The defendant also suggests that he was not the initial aggressor.

When he was fighting Javonnie, the defendant avers he had been unaware that

Javonnie had brought his brother with him to the defendant' s trailer. Thus,

according to the defendant, when Deeric " ran out of the car to join the fray," the

fight became two versus one." Finally, the defendant contends that it was

Javonnie who was the aggressor, given that he showed up unannounced at the

defendant' s home in the middle of the night.

When a defendant in a homicide prosecution claims self-defense, the State

must prove beyond a reasonable doubt that the homicide was not committed in

self-defense. State v. Williams, 2001- 0944 ( La. App. 1st Cir. 12/ 28/ 01), 804

So. 2d 932, 939, writ denied, 2002- 0399 ( La. 2/ 14/ 03), 836 So.2d 135. Louisiana

Revised Statutes 14: 20( A)( 1) provides that a homicide is justifiable when

committed in self-defense by one who reasonably believes that he is in imminent

danger of losing his life or receiving great bodily harm and that the killing is

necessary to save himself from that danger. For appellate purposes, the standard of

review for a claim of self-defense is whether a rational trier of fact, after viewing

the evidence in the light most favorable to the prosecution, could find beyond a

reasonable doubt that the homicide was not committed in self-defense. Williams,

804 So. 2d at 939; State v. Allen, 2015- 0675 ( La. App. 1st Cir. 11/ 9/ 15), 2015 WL

6951570, * 3 ( unpublished), writ denied, 2015- 2254 ( La. 3/ 4/ 16), 188 So. 3d 1056.

An aggressor may not claim self-defense without showing he first withdrew

from the conflict in good faith and in such a manner that his adversary knew or

should have known of his intention to withdraw and discontinue the conflict. La.

R.S. 14: 21. When a defendant asserts he acted in self-defense, the State bears the

burden of establishing beyond a reasonable doubt the defendant did not act in self-

defense. Eby, 248 So. 3d at 424. On appeal, the defendant asserts herein the State

failed to meet that burden.

It is true that under La. R.S. 14: 20( C) the defendant had no duty to retreat.

But the defendant' s being in a place where he had a right to be was not dispositive

of whether the defendant killed Deeric in self-defense. That is, based on the

testimony of both Tarisha and Javonnie, the defendant could not have reasonably

believed it was necessary to shoot and kill Deeric because he was in imminent

danger of losing his life or receiving great bodily harm. See La. R.S. 14: 20( A)( 1).

The defendant, Javonnie, and Tarisha all knew each other very well. Tarisha

was in an " open relationship" with both the defendant and Javonnie. The

defendant knew Javonnie and Tarisha had a young son together. Their son was at

the defendant' s trailer that night. There was nothing under the circumstances,

therefore, of Javonnie' s arrival at the trailer about 1: 00 a.m. to pick up his son and

to get the rest of his money back from Tarisha that he had lent her, that could have

caused such surprise or panic in the defendant that he would have felt his life was

in danger. It was the defendant, according to Tarisha, who had a gun in his hand as

the three of them were standing in the yard. Javonnie testified that the defendant

was standing in the yard, wearing shorts, slippers, and no shirt. According to

Javonnie, it was dark outside and he did not see a gun in the defendant' s hand.

As both Javonnie and Tarisha made clear in their testimony, they were all

just standing in the yard talking. No one was arguing, or fussing, or yelling.

During their conversation, the defendant never asked Javonnie to leave. It was

only when Tarisha told Javonnie that she was not seeing the defendant, i.e., not in a

2

relationship with the defendant, that the defendant became angry. Upset and

agitated, the defendant began arguing with Tarisha. The defendant then,

unprovoked, struck Javonnie in the face and wrestled him to the ground. Javonnie

dislocated his shoulder and could not defend himself. Javonnie retreated into a

covered position because the defendant " kept swinging" at him. Javonnie, unable

to defend himself, called out to his brother for help. Deeric got out of the car and

tackled the defendant off of Javonnie. Javonnie, at this point, stood up and did

nothing because he was hurt from having his shoulder dislocated.

The defendant and Deeric then began wrestling on the ground/grass. They

stopped fighting and stood up. According to Javonnie, Deeric tried to back away

from the defendant and " break out." The defendant, however, reengaged by

tackling Deeric to the ground. The defendant then told Tarisha to give him the gun.

At this, both Deeric and Javonnie began running in different directions. As Deeric

was running, he slipped. Javonnie heard the defendant " rack the gun" ( pushing the

slide of a semi- automatic handgun to chamber a live round). As he ran, Javonnie

looked back over his shoulder and saw the defendant shoot Deeric in the back with

a black handgun as Deeric tried to get up and run away. Javonnie kept running and

the defendant screamed out Javonnie' s name and chased him. Javonnie found a

place to hide in some bushes. Javonnie' s cousin picked him up and took him to the

hospital, where he underwent surgery for his dislocated shoulder. Javonnie spoke

to the police at the hospital.

Based on the foregoing, under any scenario, the defendant was the aggressor.

He was the aggressor in the first instance when he struck Javonnie and tackled him

to the ground. When Deeric responded to his brother getting beaten up,' the

1 Deeric' s actions in stopping the defendant from continuing to beat on someone unable to
defend himself arguably constituted defense of others. See La. R.S. 14: 22.

h

defendant, in wrestling with Deeric on the ground, was arguably defending himself

at this point. However, after the fighting had subsided and it appeared Deeric was

trying to remove himself from the situation, the defendant again became the

aggressor when he tackled Deeric to the ground. When the defendant armed

himself with the gun and both Deeric and Javonnie began running away, the

defendant could not have reasonably felt his life was in danger at this point. While

he clearly had no duty to retreat, the defendant did not need to shoot a fleeing

Deeric in order to save his own life. Whatever happened in those few minutes in

the yard, the defendant created the difficulty that ultimately led to Deeric' s death.

See La. R.S. 14: 21; State v. Hunley, 2009- 2323 ( La. App. 1st Cir. 5/ 7/ 10), 2010

WL 1838380, * 4- 5 ( unpublished); State v. Spivey, 38, 243 ( La. App. 2nd Cir.

5/ 12/ 04), 874 So. 2d 352, 358- 59.

The guilty verdict of second degree murder indicates the jury accepted the

testimony of the prosecution witnesses insofar as such testimony established that

the defendant did not kill Deeric in self-defense. See State v. Spears, 504 So. 2d

974, 978 ( La. App. 1st Cir.), writ denied, 507 So. 2d 225 ( La. 1987). Discounting

the claim of self-defense, the jury may have determined the aggressor doctrine

applied, since the defendant struck the first blow unprovoked, then escalated the

conflict by arming himself. See State v. Loston, 2003- 0977 ( La. App. 1st Cir.

2/ 23/ 04), 874 So. 2d 197, 205, writ denied, 2004- 0792 ( La. 9/ 24/ 04), 882 So. 2d

1167. Further, under the facts of this case, the jury may have determined that the

defendant, while he had every right to be in his front yard, did not reasonably

believe he was in imminent danger of losing his life or receiving great bodily harm,

and did not act reasonably under the circumstances, when he shot Deeric in the

back while both Deeric and Javonnie were fleeing from the defendant after the

defendant armed himself. See Loston, 874 So. 2d at 205. Neither Deeric nor

Javonnie was armed with a gun. Tarisha indicated she did not see Javonnie with

N.

any weapon at all.

Dr. Marianna Eserman, who performed the autopsy on Deeric, testified that

the bullet entered his right upper back and came to rest in his left pelvis hip area.

Deeric' s diaphragm, liver, colon, intestines, and inferior vena cava vein were all

hit. There was no soot or stippling found around the bullet hole on his back, which

indicated Deeric was not shot at point-blank range. According to Dr. Eserman, the

gun was at least two to three feet away when fired.

Based on the testimony, a rational trier of fact could have reasonably

concluded that the killing of Deeric was not necessary to save the defendant from

the danger envisioned by La. R.S. 14: 20( A)( 1) and/ or that the defendant had

abandoned the role of defender and taken on the role of an aggressor and, as such,

was not entitled to claim self-defense. See La. R.S. 14: 21; State v. Bates, 95- 1513

La. App. 1st Cir. 11/ 8/ 96), 683 So. 2d 1370, 1377. In finding the defendant guilty,

it is clear the jury rejected the claim of self-defense and concluded that the use of

deadly force under the particular facts of this case was neither reasonable nor

necessary. Moreover, the defendant' s actions in failing to report the shooting and

fleeing from the scene are not consistent with a theory of self-defense. See State v.

Emanuel -Dunn, 2003- 0550 ( La. App. 1st Cir. 11/ 7/ 03), 868 So. 2d 75, 80, writ

denied, 2004- 0339 ( La. 6/ 25/ 04), 876 So. 2d 829; State v. Wallace, 612 So. 2d 183,

191 ( La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1253 ( La. 1993). Flight

following an offense reasonably raises the inference of a " guilty mind." State v.

Captville, 448 So. 2d 676, 680 n.4 ( La. 1984). See Allen, 2015 WL 6951570 at * 4.

The jury can accept or reject the testimony of any witness. To resolve

conflicting testimony relative to factual matters, the jury must make credibility

determinations and weigh the evidence. Eby, 248 So. 3d at 426. See State v.

Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 700 ( per curiam). The Jackson

standard of review does not permit a reviewing court to substitute its own

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appreciation of the evidence for the factfin.der' s, assess the credibility of witnesses,

or reweigh evidence. See State v. McGhee, 2015- 2140 ( La. 6/ 29/ 17), 223 So. 3d

1136, 1137 ( per curiam); State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d 417,

422 ( per curiam). Thus, in the absence of internal contradiction or irreconcilable

conflict with the physical evidence, one witness' s testimony, if believed by the

jury, is sufficient to support a factual conclusion. State v. Higgins, 2003- 1980 ( La.

4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163

L.Ed.2d 187 ( 2005). An appellate court errs by substituting its appreciation of the

evidence and credibility of witnesses for that of the factfinder and thereby

overturning a verdict based on an exculpatory hypothesis of innocence presented

to, and rationally rejected by, the jury. Eby, 248 So. 3d at 426- 27.

The jury credited Javonnie' s testimony, which reasonably supports its

determination that the defendant shot the victim with the specific intent to kill and

not in self-defense. The jury' s determination was not irrational under the facts and

circumstances presented. See Ordodi, 946 So. 2d at 662. After a thorough review

of the record, we find that the evidence supports the jury' s unanimous guilty

verdict.
Any rational trier of fact, viewing the evidence presented in the light most

favorable to the State, could have found beyond a reasonable doubt, and to the

exclusion of every reasonable hypothesis of innocence, all elements for second

degree murder. Eby, 248 So.3d at 427.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues the trial court erred

when it informed the jury in its jury instructions that it was to consider whether the

defendant had the opportunity to retreat.

Under La. R.S. 14: 20( D), the jury is prohibited from considering the

possibility of retreat if the accused was not engaged in an unlawful activity and had

10

the right to be in the place that force was used. See State v. Wells, 2014- 1701 ( La.

12/ 8/ 15), 209 So. 3d 709 ( per curiam). The defendant suggests in brief that the jury

was instructed to consider both the possibility of retreat " as part of an overall

reasonable analysis but also instructed that [ the defendant] had no duty to retreat."

The defendant concedes that defense counsel made no objection to the jury
instructions as given.

Considering that there is no objection in the record to the instructions on

retreat, we find that the issue was not preserved for review. An alleged error in the

jury instruction is not preserved for appeal in the absence of a contemporaneous

objection. La. Code Crim. P. art. 841; State v. Rouser, 2014- 0613 ( La. App. 4th

Cir. 1/ 7/ 15), 158 So. 3d 860, 869.

Moreover, it is not clear that the jury instructions were incorrect. In

pertinent part, the trial court provided:

One, the possibility of avoiding the necessary, I' m sorry, the
necessity of taking human life by retreat, provided however, that a
person who is not engaged in any unlawful activity and is in a place
where he has a right to be has no duty to retreat before using deadly
force to save himself from the danger of losing his life or receiving
great bodily harm. He may stand his ground and meet force with
force.

While this charge was in keeping with La. R.S. 14: 20( B) and ( C), the trial

court did not explicitly inform the jury, per La. R.S. 14: 20( D), that no finder of fact

shall be permitted to consider the possibility of retreat. But given that the trial

court is obligated by La. Code Crim. P. art. 802( 1) to charge the jury on the law

applicable to the case, including every phase of the case supported by the evidence

whether or not accepted as true, it is not clear in this case that the defendant was

2 It should also be noted that while it is clear closing arguments do not constitute evidence, both
the prosecutor and defense counsel in closing arguments explained to the jury that the defendant
had no duty to retreat. Defense counsel went into more detail, explaining that there was no duty
to retreat before using deadly force to save oneself from the danger of losing his life or receiving
great bodily harm. Defense counsel further informed the jury that when it began deliberating, it
could not take into account whether or not the defendant should or should not have attempted to
retreat. Later, defense counsel again informed the jury that " this man did not have a duty to
retreat and you all cannot consider that as a factor."

11

even entitled to a jury charge for self-defense. The defendant did not testify at

trial. Tarisha' s testimony did not establish that the defendant acted in self-defense,

and Javonnie' s testimony established the defendant did not act in self-defense. As

such, with the aggressor doctrine appropriately applicable to this case, it is

questionable whether the defendant was even entitled to a self-defense charge.

At any rate, even if the jury charge regarding the duty to retreat was

erroneous, it would have constituted harmless error. In the similar jury charge

scenario in Wells, wherein the jury was instructed to both consider the possibility

of retreat and to not consider the possibility of retreat, the supreme court found that

such error was subject to a harmless error analysis. Wells, 209 So. 3d at 711- 13.

Under the harmless -error test of Chapman v. California, 386 U.S. 18, 87

S. Ct. 824, 17 L.Ed.2d 705 ( 1967), the question is whether it appears " beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained." Chapman, 386 U.S. at 24, 87 S. Ct. at 828. See State v. Gibson, 391

So. 2d 421, 426- 27 ( La. 1980). In Sullivan v. Louisiana, 508 U.S. 275, 279, 113

S. Ct. 2078, 20819 124 L.Ed.2d 182 ( 1993), the Supreme Court clarified that the

inquiry " is not whether, in a trial that occurred without the error, a guilty verdict

would surely have been rendered, but whether the guilty verdict actually rendered

in this trial was surely unattributable to the error." See Wells, 209 So. 3d at 717- 18.

Given that Javonnie' s uncontradicted testimony established that the defendant did

not kill Deeric in self-defense, the guilty verdict was surely unattributable to any

confusion that may have been created regarding the jury charge on the duty to

retreat.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues Javonnie should not

have been allowed to remain in the courtroom and listen to the testimony of

12

Tarisha before he testified.

At the start of trial, the trial court ordered sequestration of witnesses. During

trial, but prior to Javonnie and Tarisha testifying, defense counsel moved that

Javonnie, despite being a family member of the victim, be sequestered during the

testimony of Tarisha. According to defense counsel, this would prevent Javonnie

from being able to " cater his testimony" to what he had already heard from Tarisha.

Based on La. Code Evid. art. 615, the trial court denied defense counsel' s motion.

The purpose of the sequestration article is to prevent witnesses from being

influenced by the testimony of earlier witnesses. State v. Chester, 97- 2790 ( La.

12/ 1/ 98), 724 So. 2d 1276, 1282, cert. denied, 528 U.S. 826, 120 S. Ct. 75, 145

L.Ed. 2d 64 ( 1999). The trial judge, in his discretion, may determine the

disqualification of a witness when a rule of sequestration has been violated. This

ruling will not be disturbed absent an abuse of the trial court' s discretion. State v.

Draughn, 2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 621, cert. denied, 552 U.S.

10125 128 S. Ct. 537, 169 L.Ed.2d 377 ( 2007).

Louisiana Code of Evidence article 615 provides in pertinent part:

A. As a matter of right. On its own motion the court may, and on
request of a party the court shall, order that the witnesses be excluded
from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with

anyone other than counsel in the case. In the interests of justice, the
court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the
following:

4) The victim of the offense or the family of the victim.
Under La. Code Evid. art. 615( B)( 4), Javonnie, as the brother of the victim,

was entitled to remain in the courtroom for the duration of the trial. Without any

showing, by a preponderance of the evidence, that a sequestration violation

occurred and that the violation substantially prejudiced his case, a complaining

party is not entitled to having his opponent' s witnesses excluded from the trial.

13

State v. Lucas, 39, 419 ( La. App. 2nd Cir. 3/ 9/ 05), 896 So. 2d 331, 340.

The defendant claims he was prejudiced by the trial court' s failure to

sequester Javonnie during the testimony of Tarisha. According to the defendant,

after Tarisha' s testifying first, Javonnie then repeatedly referred to her testimony

during his cross- examination. For example, when Tarisha was asked about texts

from Javonnie to her wherein Javonnie stated she was going to make him hurt her

if she did not give him his money back, Tarisha responded that this type of

language was typical between them and it was just the way they talked to each

other. When Javonnie was later asked about similar texts where he threatened to

slap Tarisha, he indicated that it was the way they talked to each other, and that

Tarisha had told defense counsel that.

The defendant suggests that defense counsel was unable to cross- examine

Javonnie effectively about his mental state on the night of the shooting because

Javonnie had listened to Tarisha' s testimony before testifying. According to the

defendant, Javonnie should have testified first, which would have preserved his

right to remain in the courtroom throughout the trial. Under this scenario, the

defendant avers, neither witness' s testimony would have impacted the other' s.

The defendant has failed to show how Javonnie' s presence in the courtroom

during Tarisha' s testimony substantially prejudiced his case. Aside from a few

instances where Javonnie agreed with Tarisha, such as they talked to/texted each

other in their own particular way and that all parties were aware of Tarisha' s

open"
relationship with the defendant and Javonnie, there was nothing in the

cross- examination of Javonnie that suggested he was merely repeating what

Tarisha had testified to earlier. See State v. Jones, 43, 053 ( La. App. 2nd Cir.

2/ 20/ 08), 982 So. 2d 105, 117- 18, writ denied, 2008- 0710 ( La. 10/ 10/ 08), 993

So. 2d 1282. Their accounts regarding how events unfolded that night were clearly

dissimilar enough to indicate Javonnie' s testimony was not merely a reiteration of

14

Tarisha' s testimony. Aside from both testifying that all three ( the defendant,

Javonnie, and Tarisha) were standing in the yard, there was little agreement in what

followed. For example, Tarisha testified the defendant had a gun in his hand when

she was talking to Javonnie. Javonnie testified he did not see the defendant with a

gun. Javonnie testified that the defendant threw the first punch. Tarisha testified

only that they " went at it" and that she did not know who struck whom first.

Javonnie testified he heard the defendant tell Tarisha to give him the gun. Tarisha

testified she never had a gun and never gave the defendant a gun

There was no evidence that the rule of sequestration was violated, as there

was no evidence that these witnesses discussed the case amongst themselves.

Moreover, it is clear that the testimony of Javonnie was not improperly influenced

by the earlier testimony of Tarisha, but rather that he testified according to his own

recollection of the same events that had been addressed during Tarisha' s testimony.

See Draughn, 950 So. 2d at 621- 22; State v. Comery, 2012- 0999 ( La. App. 1st

Cir. 9/ 13/ 13), 2013 WL 11253298, * 3 ( unpublished), writ denied, 2013- 2401 ( La.

5/ 23/ 14), 140 So. 3d 720. See also State v. Johnson, 2001- 2334 ( La. App. 4th Cir.

12/ 4/ 02), 833 So. 2d 508, 511 ( finding witness' s presence in the courtroom during

her mother' s testimony was not a violation of the trial court' s sequestration order

where witness was a victim of the offense, as well as a family member of another

victim, and her presence in the courtroom did not affect her testimony).

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant argues that his life sentence

is excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20,

of the Louisiana Constitution prohibit the imposition of cruel or excessive

punishment. Although a sentence falls within statutory limits, it may be excessive.

15

State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is considered

constitutionally excessive if it is grossly disproportionate to the seriousness of the

offense or is nothing more than a purposeless and needless infliction of pain and

suffering. A sentence is considered grossly disproportionate if, when the crime and

punishment are considered in light of the harm done to society, it shocks the sense

of justice. State v. Livous, 2018- 0016 ( La. App. 1st Cir. 9/ 24/ 18), 259 So. 3d 1036,

1044, writ denied, 2018- 1788 ( La. 4/ 15/ 19), 267 So. 3d 1130. The trial court has

great discretion in imposing a sentence within the statutory limits, and such a

sentence will not be set aside as excessive in the absence of a manifest abuse of

discretion. State v. Scott, 2017- 0209 ( La. App. l st Cir. 9/ 15/ 17), 228 So. 3d 207,

211, writ denied, 2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410. Louisiana Code of

Criminal Procedure article 894. 1 sets forth the factors for the trial court to consider

when imposing sentence. While the entire checklist of Article 894. 1 need not be

recited, the record must reflect the trial court adequately considered the criteria.

State v. Brown, 2002- 2231 ( La. App. 1st Cir. 5/ 9/ 03), 849 So. 2d 566, 569.

The articulation of the factual basis for a sentence is the goal of Article

894. 1, not rigid or mechanical compliance with its provisions. Where the record

clearly shows an adequate factual basis for the sentence imposed, remand is

unnecessary even where there has not been full compliance with Article 894. 1.

State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); Scott, 228 So. 3d at 211. The

trial judge should review the defendant' s personal history, his prior criminal record,

the seriousness of the offense, the likelihood that he will commit another crime,

and his potential for rehabilitation through correctional services other than

confinement. State v. Jones, 398 So. 2d 1049, 1. 051- 52 ( La. 1981); State v.

Spikes, 2017- 0087 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 201, 204- 05.

For the defendant' s second degree murder conviction, the trial court imposed

the mandatory life sentence. The defendant argues in brief that under the facts

16

developed at trial, his life sentence without parole is unconstitutionally excessive.

According to the defendant, life imprisonment is grossly disproportionate to the

situation that occurred in this case.

In State v. Dorthey, 623 So. 2d 1276, 1280- 81 ( La. 1993), the Louisiana

Supreme Court opined that if a trial judge were to find that the punishment

mandated by La. R.S. 15: 529. 1 makes no " measurable contribution to acceptable

goals of punishment" or that the sentence amounted to nothing more than " the

purposeful imposition of pain. and suffering" and is " grossly out of proportion to

the severity of the crime," he has the option, indeed the duty, to reduce such

sentence to one that would not be unconstitutionally excessive. In State v.

Johnson, 97- 1906 ( La. 3/ 4/ 98), 709 So. 2d 672, 676- 77, the Louisiana Supreme

Court reexamined the issue of when Dorthey permits a downward departure from

the mandatory minimum sentences in the Habitual Offender Law.

Mandatory sentences have been repeatedly upheld as constitutional and

consistent with the federal and state constitutional provisions prohibiting cruel,

unusual or excessive punishment. Scott, 228 So. 3d at 212. To rebut the

presumption that the mandatory minimum sentence is constitutional, the defendant

must clearly and convincingly show that he is exceptional, which means that

because of unusual circumstances this defendant is a victim of the legislature' s

failure to assign sentences that are meaningfully tailored to the culpability of the

offender, the gravity of the offense, and the circumstances of the case. Johnson,

709 So. 2d at 676.

Considering the nature of the crime and the mandatory life sentence at issue,

we find no abuse of discretion by the trial court. The defendant does not mention

Dorthey or Johnson in brief, but to the extent he is suggesting his situation is

unique, he has not proven by clear and convincing evidence that he is exceptional

such that the sentence would not be meaningfully tailored to the culpability of the

17

offender, the gravity of the offense, and the circumstances of the case. See

Johnson, 709 So. 2d at 676. Accordingly, the sentence imposed by the trial court is

not grossly disproportionate to the severity of the offense and, therefore, is not

unconstitutionally excessive._

This assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

HM